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As the D.C. Circuit Court of Appeals announced the commencement of oral arguments on December 4 with respect to legal challenges against the FCC’s latest order on net neutrality, petitioners in the case submitted their briefs in the appeal. The filings accuse the FCC of violating the 1934 Communications Act or otherwise exceeding its statutory authority in enacting rules that reclassify broadband Internet services as telecommunications services pursuant to Title II of the Act.

Approved on February 26, the FCC’s order restores anti-blocking, anti-discrimination and other net neutrality mandates that were approved by the agency in 2010 but were subsequently struck down by the D.C. Circuit. That court decreed that such rules constituted an illegal attempt to subject broadband Internet service providers (ISPs)—which the FCC had earlier classified as Title I information service providers—to Title II common carrier regulation. In reclassifying fixed and wireless broadband services as Title II telecommunications services, the FCC’s February order aims to supply the legal foundation to regulate broadband that the appellate panel ruled was missing in the 2010 order.

The order prescribes a tailored approach to Title II under which the FCC said it would invoke its forbearance powers to refrain from imposing pricing and other restrictions on ISPs that apply to wireline common carriers. The U.S. Telecom Association, the National Cable & Telecommunications Association, wireless association CTIA and four other petitioners, however, advised the court in a joint brief that broadband Internet access services function as information services that “cannot fall within the ‘mutually exclusive’ category of telecommunications service.” As they argued that Title II reclassification is therefore unlawful, the joint filers also highlighted language contained in Section 230 of the 1996 Telecommunications Act. That provision states that it is the policy of the U.S. to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by federal or state regulation.” Observing that interactive computer services are defined under Section 230 “to include any information service . . . that provides access to the Internet,” the joint filers took issue with the FCC’s failure to “explain why broadband Internet access falls outside the statutory definition of information service.”

Meanwhile, a group of small service providers led by the Full Service Network (FSN) told the court in a separate brief that the FCC’s decision to forbear from applying certain Title II regulations to broadband ISPs is unlawful in view of the FCC’s refusal to follow its own rules requiring petitions for forbearance to include “a full statement of the petitioner’s prima facie case for relief.” FSN further maintained that, pursuant to the 1996 Act, Congress intended that “only an information service provided by a telecommunications carrier is prohibited from being regulated as a common carrier service.” As such, FSN observed: “the only way for the statute and the regulation to coexist is if . . . there is a regulated telecommunications service included in the public offering of an information service.

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